Citation Nr: 0028440
Decision Date: 10/27/00 Archive Date: 11/01/00
DOCKET NO. 96-37 687 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased disability rating for the
veteran's service-connected post traumatic concussive
syndrome manifested by persistent, recurrent headaches and
positional vertigo, currently rated 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
P.B. Werdal, Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July
1969. He also served with the United States Army National
Guard from February 1986 to November 1988; his NGB Form 22
also shows approximately three years of prior reserve
component service.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 1995 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which, inter alia, denied a claim by the
veteran seeking entitlement to a disability rating in excess
of 10 percent for his service-connected post-traumatic
concussion syndrome. This case was previously reviewed by
the Board in January 1998 and June 1999, at which time it was
remanded for further development.
FINDINGS OF FACT
The current manifestations of disability attributed to the
veteran's post traumatic concussive syndrome manifested by
persistent, recurrent headaches and positional vertigo
include headaches, vertigo, dizziness, tinnitus, and
vomiting, but do not include dementia.
CONCLUSION OF LAW
A disability rating of more than 10 percent is not warranted
for the veteran's service-connected post traumatic concussive
syndrome manifested by persistent, recurrent headaches and
positional vertigo. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.7, 4.87, Diagnostic Code 6204, 4.124a,
Diagnostic Codes 8045, 9304 (1999); 38 C.F.R. § 4.87a,
Diagnostic Code 6204, 4.124a, Diagnostic Code 9304 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
The veteran served on active duty from July 1966 to July
1969. He also served with the United States Army National
Guard from February 1986 to November 1988; his NGB Form 22
also shows approximately three years of prior reserve
component service. His service medical records show no
complaints of, treatment for, or diagnosis of a post
traumatic concussive syndrome manifested by persistent,
recurrent headaches and positional vertigo during the
veteran's first period of active service from 1966 to 1969.
A February 1986 induction medical examination report, for
enlistment with the National Guard, indicates that the
veteran had no neurologic problems and no physical defects
involving his head, neck, or spine. However, a February 1986
statement reflects that the veteran sustained a head
contusion and possible concussion during Airborne parachute
operations. In an attached statement, the veteran indicated
that he hit the back of his head and lost his senses for a
few moments. A February 1986 service medical care record
indicates that the veteran was seen with complaints of
dizziness, headaches, and nausea, since his parachute
accident. After objective examination, the assessment was
"concussive trauma." A May 1987 medical care record
indicates that the veteran had complaints of an injury to his
neck with symptoms of neck pain, headaches, and numbness in
arms. The symptoms had been present since the 1986 parachute
jump. The veteran was neurologically intact, except for
questionable decreased strength in the hands bilaterally. A
November 1987 physical profile report reflected that the
veteran was on temporary profile due to chronic pain in his
neck, post parachute jump injury. A November 1987 service
clinical record reflects that the veteran complained of
chronic neck, shoulder, and arm pain, as well as reduced grip
strength in his hands, since his 1986 parachute jump injury.
It indicated that a February 1986 X-ray revealed degenerative
joint disease of the cervical spine at C5-C6 with narrowed
disc spaces and osteophyte formation.
A July 1988 outpatient physical evaluation report indicates
that the veteran was status post parachute injury and had
complaints of persistent dizziness, headaches, and neck pain,
as well as bilateral arm pain. A computed tomography (CT)
study of the cervical spine revealed a bulging C5-C6 disc
with encroachment of the C5-C6 neural foramen by osteophytes.
General physical examination was within normal limits.
Neurological examination was unremarkable, except for
decreased pinprick in a patchy non-anatomic distribution.
Electronystagmogram revealed a non-localizing vestibular
dysfunction. The relevant diagnosis was post concussion
syndrome manifested by persistent recurrent headaches and
persistent recurrent episodes of positional vertigo.
Overall, his symptoms had improved since the injury, but he
was deemed unable to perform his full duties of service. The
veteran was discharged from service, effective November 1988.
In a VA Compensation and Pension examination conducted in May
1991, the veteran had complaints of headaches, dizziness,
blurred vision, numbness in both arms, and neck pain that
radiated to his upper extremities. Objective examination of
the nervous system was unremarkable. In August 1991, service
connection was granted for post traumatic concussive syndrome
manifested by persistent, recurrent headaches and positional
vertigo, and the disability was rated 10 percent disabling
under Diagnostic Code 8045-9304.
In August 1994 the veteran filed a claim for an increased
rating for his post traumatic concussive syndrome manifested
by persistent, recurrent headaches and positional vertigo.
VA outpatient records include a May 1994 neurological
examination. The report of that examination noted the
veteran's complaints of vertigo, dizziness and tinnitus.
Upon examination, the mental status was characterized as
normal. Cranial nerves II through XII were without
asymmetry, pupils were equal, round and reactive to light.
Extraocular muscles were intact and without nystagmus. V1
through V3 were intact with increased gag reflex and tongue
at the midline. Motor strength was 5/5 bilaterally. The
sensory system was characterized as intact in all modalities.
When assessing coordination, the finger to nose test was slow
but accurate without ataxic dysmetria. His gait was normal;
he had a negative Romberg; rapid alternating movements were
slow, left more so than the right. Barany's Maneuver was
without nystagmus. An electroencephalogram was interpreted
to yield a normal result. The relevant assessment included
vertigo of questionable etiology. An August 1994 record
reported that electroencephalography revealed that all
central vestibular tests were within normal limits, with
significant direction change positional nystaxis was
recorded, greater in supine position.
In March 1995 an increased rating was denied. In May 1995
the veteran expressed disagreement with that decision. He
was furnished a Statement of the Case. Additional VA
treatment records were received showing medical care
administered in November 1994, when an examiner concluded
that testing showed nystagmus. He filed a substantive appeal
in September 1995. Following consideration of the additional
medical records, the RO issued a rating decision and a
Supplemental Statement of the Case (SSOC) in September 1995.
Records dated in August, September and October 1995 contain a
diagnoses of cupulolithiasis and benign paroxysmal postural
vertigo. In February 1996 the RO issued a rating decision
and an SSOC explaining why the claim for a rating higher than
10 percent was denied.
In January 1998 the Board remanded this claim for an
examination, which was conducted in June 1998, and which is
the most recent medical evidence of record. The neurological
report indicates that the veteran had headaches approximately
2 to 3 times per week, that lasted for a day and a half at a
time. Neurological examination was normal; there was no
nystagmus. Strength, sensory, and reflexes were within
normal limits. Gait was normal, although the veteran felt
somewhat shaky in his gait. There was diminished range of
motion of the neck, bilaterally. The impression was chronic
post-concussive headaches with tension and migraine
components, and chronic cervical sprain syndrome without
evidence of radiculopathy or myelopathy.
The Board remanded the matter in June 1999 for consideration
of the claim under the new version of VA's Schedule for
Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4,
(Rating Schedule), which was revised in 1996 with regard to
rating mental disorders. On remand the RO reviewed the claim
for an increased rating using the new version of the Rating
Schedule and concluded a rating of more than 10 percent was
not warranted under that version. In written argument
submitted in September 2000, the veterans representative
asserted remand is required to obtain a new VA Compensation
and Pension examination because the examiner in 1998 failed
to provide a Global Assessment of Functioning (GAF).
Laws and Regulations
Disability evaluations are determined by the application of
VA's Rating Schedule, 38 C.F.R. Part 4 (1999). The
percentage ratings contained in the Rating Schedule
represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
38 C.F.R. § 4.20 (1999).
Brain disease due to trauma is now, and was at the time this
claim was filed, rated under 38 C.F.R. § 4.124a, Diagnostic
Code 8045 as follows. Purely neurological disabilities, such
as hemiplegia, epileptiform seizures, facial nerve paralysis,
etc., following trauma to the brain, will be rated under the
diagnostic codes specifically dealing with such disabilities,
with citation of a hyphenated diagnostic code (e.g., 8045-
8207). Purely subjective complaints such as headache,
dizziness, insomnia, etc., recognized as symptomatic of brain
trauma, will be rated 10 percent and no more under diagnostic
code 9304. This 10 percent rating will not be combined with
any other rating for a disability due to brain trauma.
Ratings in excess of 10 percent for brain disease due to
trauma under diagnostic code 9304 are not assignable in the
absence of a diagnosis of multi-infarct dementia associated
with brain trauma.
Dementia due to head trauma is rated under Diagnostic Code
9304. The Rating Schedule currently provides the following
general rating formula for mental disorders:
Total occupational and social impairment, due to
100
such symptoms as: gross impairment in thought
processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others;
intermittent inability to perform activities of
daily living (including maintenance of minimal
personal hygiene); disorientation to time or
place; memory loss for names of close relatives,
own occupation, or own name.......................
Occupational and social impairment, with
70
deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due
to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine
activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function
independently, appropriately and effectively;
impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike
setting); inability to establish and maintain
effective relationships...........................
Occupational and social impairment with reduced
50
reliability and productivity due to such symptoms
as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in
understanding complex commands; impairment of
short- and long-term memory (e.g., retention of
only highly learned material, forgetting to
complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining
effective work and social relationships...........
Occupational and social impairment with occasional
30
decrease in work efficiency and intermittent
periods of inability to perform occupational tasks
(although generally functioning satisfactorily,
with routine behavior, self-care, and conversation
normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent
events)...........................................
Occupational and social impairment due to mild or
10
transient symptoms which decrease work efficiency
and ability to perform occupational tasks only
during periods of significant stress, or; symptoms
controlled by continuous medication...............
A mental condition has been formally diagnosed, but
0
symptoms are not severe enough either to interfere
with occupational and social functioning or to
require continuous medication.....................
38 C.F.R. § 4.130 (1999). At the time this claim was filed,
the criteria used to rate disability resulting from dementia
due to head trauma provided that a 100 percent rating was
appropriate when the attitudes of all contacts except the
most intimate are so adversely affected as to result in
virtual isolation in the community. Totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting from profound retreat from mature behavior.
Demonstrably unable to obtain or retain employment. Those
criteria provided a 70 percent rating for symptoms comparable
with an ability to establish and maintain effective or
favorable relationships with people was severely impaired.
The psychoneurotic symptoms were of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. A 50 percent rating was
warranted under those criteria when the ability to establish
or maintain effective or favorable relationships with people
was considerably impaired. By reason of psychoneurotic
symptoms the reliability, flexibility and efficiency levels
so reduced as to result in considerable industrial
impairment. A 30 percent rating was warranted when the
veteran exhibited symptoms comparable with definite
impairment in the ability to establish effective and
wholesome relationships with people. The psychoneurotic
symptoms result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. A 10 percent rating was warranted
when the veteran had symptoms less than the criteria for the
30 percent rating, with emotional tension or other evidence
of anxiety productive of mild social and industrial
impairment. A noncompensable rating was appropriate when the
veteran exhibited symptoms comparable with neurotic symptoms
which may somewhat adversely affect relationships with others
but which do not cause impairment of working ability.
38 C.F.R. § 4.132, Diagnostic Code 9304 (1994).
Peripheral vestibular disorders are now rated under 38 C.F.R.
§ 4.87, Diagnostic Code 6204 (1999), using the following
criteria: dizziness and occasional staggering is rated 30
percent disabling. Occasional dizziness is rated 10 percent
disabling. The rating criteria contains the following Note:
objective findings supporting the diagnosis of vestibular
disequilibrium are required before a compensable evaluation
can be assigned under this code. Hearing impairment or
suppuration shall be separately rated and combined. At the
time the veteran filed this claim in August 1994, the
criteria provided as follows for rating chronic
labyrinthitis: severe; tinnitus, dizziness and occasional
staggering was rated 30 percent disabling. Moderate
disability; tinnitus, occasional dizziness was rated 10
percent disabling. Note: To be combined with ratings for
loss of hearing or suppuration. 38 C.F.R. § 4.87a,
Diagnostic Code 6204 (1994).
During the pendency of this claim there was a change in VA's
Rating Schedule with regard to rating mental disorders and
ear diseases. Accordingly, VA must consider the claim under
both versions of the rating criteria, and apply the version
most favorable to the veteran. Karnas v. Derwinski,
1 Vet. App. 308 (1991).
Migraine headaches are rated under Diagnostic Code 8100.
With very frequent completely prostrating and prolonged
attacks productive of severe economic inadaptability, the
disability is rated 50 percent disabling. With
characteristic prostrating attacks occurring on an average
once a month over the last several months, the disability is
rated 30 percent disabling. With characteristic prostrating
attacks averaging one in 2 months over last several months,
10 percent is the appropriate rating, and a noncompensable
rating is assigned for less frequent attacks. 38 C.F.R.
§ 4.124a, Diagnostic Code 8100 (1999).
Analysis
The veteran has a service-connected disability that was
incurred during a parachute landing: he reported he struck
his head on the ground when landing in 1986. The disability
is characterized as post traumatic concussive syndrome
manifested by persistent, recurrent headaches and positional
vertigo. That particular disability is not specifically
addressed in VA's Rating Schedule, 38 C.F.R. Part 4.
Therefore, VA must rate it by analogy. 38 C.F.R. § 4.20
(1999). When rating disability by analogy, if the rating is
determined on the basis of residual conditions, the number
appropriate to the residual condition will be added, preceded
by a hyphen. 38 C.F.R. § 4.27 (1999). In this case, the
Diagnostic Code used was 8045, brain disease due to trauma.
The level of impairment due to the manifestations was
assessed using the criteria found in 9304, dementia due to
head injury. The record contains no competent evidence that
the veteran has dementia.
Diagnostic Code 8045 addresses brain disease due to trauma,
and the Board finds that diagnostic code addresses a closely
related disease in which not only the functions affected, but
the anatomical localization and symptomatology are closely
analogous. The criteria used to assess the level of
disability require consideration of whether the
manifestations are neurological or subjective. In this case,
determining whether the veteran has neurological symptoms or
subjective symptoms, or both, is made somewhat more
complicated by the fact that some medical records report
vertigo, a neurological manifestation, and some report
dizziness, a subjective manifestation. The Board will assume
that when the term vertigo is used it refers to a
neurological symptom, and when dizziness is used it refers to
a subjective symptom.
The medical evidence has shown no neurological symptomatology
other than nystagmus and vertigo. Nystagmus has been noted,
but has not been reported to cause any impairment in the
veteran. Vertigo has been complained of and confirmed on
examination. The Rating Schedule addresses vertigo under
Diagnostic Code 6204, and bases the decision as to the
appropriate disability rating on dizziness and staggering.
Under the old version of the Rating Schedule, which was in
effect until 1999, a 10 percent rating required symptoms
comparable with moderate disability; tinnitus and occasional
dizziness. The evidence does not support a finding that he
staggered, as required for a 30 percent rating. Accordingly,
the Board concludes that, under the old version of the Rating
Schedule, a 10 percent rating, but no higher, would be
warranted for the manifestations of vertigo. 38 C.F.R.
§ 4.87a, Diagnostic Code 6204; 4.124a, Diagnostic Code 8045
(1994). Under the new version, tinnitus need not be present,
but a 30 percent rating still requires staggering, of which
there is no evidence in this case. 38 C.F.R. § 4.87,
Diagnostic Code 6204 (1999). In summary, a 10 percent rating
is warranted for the neurological manifestation, vertigo, of
the veteran's traumatic brain injury under either the old or
the new version of the Rating Schedule.
The veteran also has headaches and dizziness, which are
subjective complaints attributable to his traumatic brain
injury. There is no medical evidence that the veteran has
multi-infarct dementia, or that if he does, that it is
associated with his brain trauma. Further inquiry as to the
level of impairment attributable to the subjective symptoms
using the general rating criteria for mental disorder found
in 38 C.F.R. §§ 4.132 (1994) and 4.130 (1999) is not
required, because under the criteria for rating disability
due to brain trauma found in Diagnostic Code 8045, the mere
presence, to whatever degree, of subjective complaints in the
absence of multi-infarct dementia requires a 10 percent
rating, but no more. Therefore, the subjective
manifestations of disability due to the brain injury are
correctly rated 10 percent disabling. 38 C.F.R. § 4.124a,
Diagnostic Code 8045.
The rating criteria under Diagnostic Code 8045 also provide
that these two ratings, the neurological and the subjective,
cannot be combined. Accordingly, a disability rating of 10
percent, but no more than 10 percent, is appropriate for the
disability due to the veteran's post traumatic concussive
syndrome manifested by persistent, recurrent headaches and
positional vertigo. With regard to the assertion that a
remand is required to obtain a GAF score, the Board finds
such additional development is not necessary in this case:
the record does not reveal that the veteran has dementia, and
so additional inquiry into the level of disability due to a
mental disorder is not warranted.
It is well established that a claim for increase must be
considered under all codes under which a rating is
potentially assignable. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). Other potentially applicable diagnostic
codes include Diagnostic Code 8100, which rates disability
due to migraine headaches. The record does not reveal that
this veteran has migraine headaches, but he does have other
headaches. For a rating of more than 10 percent, the
criteria require symptoms comparable with very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability. The record does not support
a finding of the existence of such severe symptoms, however.
Although the veteran asserts he has prostrating attacks, the
medical record does not support a finding of the presence of
prostrating attacks occurring on an average once a month over
the last several months. Another possibly applicable code is
Diagnostic Code 6204, which rates disability due to vertigo.
As discussed above, however, the evidence does not support a
finding that the veteran experiences staggering due to his
post traumatic concussive syndrome manifested by persistent,
recurrent headaches and positional vertigo. Accordingly, a
higher rating is not warranted under either version of
Diagnostic Code 6204. 38 C.F.R. §§ 4.7, 4.87, Diagnostic
Code 6204 (1999); 38 C.F.R. § 4.87a, Diagnostic Code 6204
(1994).
If the positive and negative evidence was in approximate
equipoise, the law requires that the benefit sought be
granted, as the claimant is entitled to the benefit of the
doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). In
this case, the evidence that supports a higher disability
rating consists of the veteran's assertions of increased
impairment; however, there is no competent, medical evidence
of symptoms and manifestations of the veteran's post
traumatic concussive syndrome manifested by persistent,
recurrent headaches and positional vertigo that reflect a
level of impairment greater than 10 percent under any
Diagnostic Code in VA's Rating Schedule. Therefore, the
positive and negative evidence is not in equipoise.
Accordingly, the benefit of the doubt does not apply.
38 U.S.C.A. § 5107.
ORDER
A disability rating of more than 10 percent for post
traumatic concussive syndrome manifested by persistent,
recurrent headaches and positional vertigo, is denied.
A. BRYANT
Veterans Law Judge
Board of Veterans' Appeals